Commentary - Art. 148. Part IV : Execution of the convention #Section I : General provisions

ARTICLE 148. -- RESPONSIBILITIES OF THE CONTRACTING PARTIES

This provision naturally does not relate to the obligation to prosecute and punish those committing breaches of the Convention which Article 146 makes absolute. If, however, any doubt existed on that point, this Article would clear it up entirely. Article 148 is completely new. According to the comments on it made by the Italian delegation, which put it forward, this amendment is a logical consequence of the preceding Article . The State remains responsible for breaches of the Convention and will not be allowed to absolve itself from responsibility on the grounds that those who [p.603] committed the breach have been punished. For example, it remains liable to pay compensation. For a better understanding of the sense of this provision, it should be compared with Article 3 of the Fourth Hague Convention of 1907, which reads:

"A belligerent Party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."

In our opinion, Article 148 is intended to prevent the vanquished from being compelled in an armistice agreement or a peace treaty to renounce all compensation due for breaches committed by persons in the service of the victor. As regards material compensation for breaches of the Convention, it is inconceivable, at least as the law stands today, that claimants should be able to bring a direct action for damages against the State in whose service the person committing the breach was working. Only a State can make such claims on another State, and they form part, in general, of what is called "war reparations". It would seem unjust for individuals to be punished while the State in whose name or on whose instructions they acted was released from all liability.